As Feds Expand Guest Worker Visas, Many Companies Say More Still Needed

From remote crabbing outposts on the Chesapeake Bay to landscaping firms serving Colorado’s gated communities, businesses are dealing with shortages of low-wage foreign workers they rely on for seasonal jobs.

The shortages are a consequence of a cap in the federal government’s H-2B visa program. For the past couple of years, with unemployment at historic lows, business owners and politicians have agitated for relief. Now, the Labor and Homeland Security departments are moving on lifting the cap, but some say it still isn’t enough.

The H-2B program is a cousin of the better-known H-1B program, which supplies high-skilled foreign workers to high-tech firms in Silicon Valley and beyond. The H-2B workers are largely unskilled, mostly from Mexico, and they come to fill jobs as landscapers, hotel and restaurant workers, crab pickers, tree planters and roustabouts with traveling carnival companies. These are seasonal jobs lasting about six months, after which the workers are generally expected to return to their home countries.

Most H-2B workers earn $12 to $14 an hour, according to the federal Office of Foreign Labor Certification’s analysis of data from Colorado. Some earn more: cement masons command an average of $17 an hour.

Seeking the Visas

The program for many years has set a recurring cap of 66,000 visas. They are divided in half, with 33,000 for the “winter season,” which starts on Oct. 1, and 33,000 for the “summer season” starting on April 1. These dates define when a visa holder can begin working. The process of filing and approving the visas is done months in advance.

With a tightening labor market, the Trump administration three times has agreed to increase the number of H-2B visas. It could do so because Congress, without changing the basic yearly cap, authorized many more slots, but left it to the executive branch to decide whether to actually issue the visas. An additional 15,000 were allotted for the summer season in both 2017 and 2018, and on March 29 of this year, the administration announced it would add 30,000 for the 2019 summer season that would begin only three days later. Congress had authorized about twice as many slots.

The program has been growing in popularity, both because of labor shortages and because more employers are seeing these workers as a source of inexpensive labor. Labor Department statistics show that employers requested a total of 164,864 workers for all of 2019.

When it announced the 30,000 increase for this year, the administration said that the program would accept only “returning workers,” people who had been previously approved as participants in the past three years.

The administration has been using a lottery system for allocating slots above the initial 66,000 cap. That departure from the customary first-in, first-out approach, increased uncertainty among applicants as to their prospects for success in the next round. It’s not clear if a lottery will be used to allocate the 30,000 new slots for the 2019 summer season.

Getting the Visas

The yearly scramble for visas has forced employers to learn the intricacies of immigration policy, and has given birth to a cottage industry of facilitators who help them navigate bureaucratic pathways.

The H-2B saga began this year on Jan. 1 at 12:01 a.m. when the Labor Department opened up its website for receiving applications. Within seconds, 22,000 employer submissions dashed across the internet, bringing the website to a grinding halt. A week later, the Department reopened the site at 2 p.m., and the flood began again. Applications for 96,400 visas were time-stamped to the millisecond.

Todd Ahl, whose firm Labor Solutions, Inc.,  is the largest facilitator of H2B visa applications in Colorado, said in an interview that it took him until 2:33 pm to complete his filings on behalf of more than 100 clients. With the first-in, first-out approach in place for these filings, only those whose applications were stamped before 2:10 were approved, leaving the remainder to hope they would gain slots if the cap was lifted.

In the latter category was John Erbert, whose Mow Time company has been the largest provider of lawn care services in Colorado. Based in the Denver suburb of Littleton, Erbert for close to 30 years found the workers he needed among high school and college kids during their summer vacations. But, he said in an interview, the strengthening economy has brought a very tight labor market, and young people have become less interested in hard manual work.

Operating a fleet of trucks, and invested in a lot of lawn maintenance equipment, Erbert would serve hundreds of customers. But a turning point came in 2015. “We were putting ads out, but the phone was not ringing,” Erbert said. “We had to give away 200 customers. It was a really tough year.”

Erbert heard about the H-2B visa program and applied for 24 positions. He has been employing that many Mexican workers for the past three years. “They do as much work as 50 Americans,” he said.

He complained bitterly about the quality of American workers he has employed. They would “stink up his trucks with marijuana,” he said. They would not work hard, and when called account, they didn’t listen to the criticism. They were rude to his office staff, who would show up in his office in tears, he said.

When the Mexican workers arrived, “it was like night and day,” he said. They were polite, punctual, hard-working; “I would go home with a tear in my eye: they have saved us.”

But the 2019 visa process did not result in visas for Mow Time, so Erbert decided to sell his business. The government’s decision to add more slots in the H-2B program wasn’t going to help Erbert this season, since his mowing contracts are booked early in the year.

Another major user of the H-2B program in Colorado is the famous Broadmoor resort in Colorado Springs. Chris Clark, who worked as a manager there for seven-plus years, recalls that the hotel would employ 200 to 250 workers from Jamaica to staff golf course and swimming pool maintenance, landscaping, restaurant, housekeeping and other jobs. Clark now works for Marriott in downtown Denver, where foreign workers aren’t needed, but he stays active on the H-2B issue as a board member of the Colorado Restaurant Association. Resort companies are struggling for staff, he observed in a recent interview.

People from Jamaica and other parts of the Caribbean have found many jobs in Colorado and northwards into South Dakota, where restaurants in small towns of the Black Hills offer jerk chicken and coconut rice on menus featuring photographs of Mount Rushmore.

For all the difficulties this year with the program, Ahl says the Trump administration has been easier to work with on the H-2B program than was the Obama administration. Obama hewed to the 66,000 limit set under the original law.

Clark noted wryly that the Trumps had made sure to get a full complement of 78 H-2B visas to fill jobs at the family’s Mar-a-Lago resort in Palm Beach, Florida. The applications were made, and approved, last fall to meet the needs of the winter season that ended March 31. “Even the president understands the impact on business when these people aren’t available,” Clark said. “There’s a lot of anger over that among businesses that didn’t get them.”

Workers at Florida winter resorts will often migrate north for jobs at summer resorts like the Broadmoor. Some will move up to jobs in Colorado ski country, where the age of the “ski bums” has all but ended, Clark said. They staff hotels and restaurants in places like Vail and Aspen.

While many workers return home after six months, others stay in the United States for up to two and a half years before returning to their home countries. Employers don’t talk about this much, said Clark, especially with anti-immigration sentiment running high in some places.

In the eyes of businesses, H-2B visas facilitate employment of temporary “guest workers” who are not immigrants seeking permanent status or citizenship. But the heated debate about immigration has wrapped the program in heavy-duty politics, Ahl and Clark say. Trump’s anti-immigration policies make his embrace of the H-2B program an interesting exception.

Are the Visas Needed?

The H-2B program has faced strong criticism. “It suppresses wages and takes jobs from American workers,” says Rosemary Jenks, director of government relations for NumbersUSA, a nonprofit group devoted to lowering the number of immigrants admitted to this country.

“There are plenty of low-skilled and unskilled workers who would be able to do these jobs,” said Jenks. “Landscaping, ski resorts, summer resorts, these are all jobs that college kids used to do. The employment rate among American youth is notably lower than in previous times, she added.

“H-2B employers bring these workers in, put them in substandard housing, charge them rent and then pay them a lower wage” than the market would otherwise dictate, Jenks continued.

One example of exploitation made news in mid-February, when the U.S. Labor Department’s Wage and Hour Division settled with the owner of two prestigious horse training facilities in California on charges he had shortchanged foreign workers. A consent judgment filed in federal court required the owner to pay $1.3 million in back wages to 30 employees, and banned him from using the H2B program for one year.

Jenks attacked “the total abdication of responsibility by Congress” for setting the actual number of immigrants that would be admitted through the program. In an omnibus appropriations act signed by Trump on Feb. 15, Congress provided that the 66,000 cap could be as much as doubled. But “they haven’t had the guts to put their name behind an actual number, “said Jenks, “so they’ve delegated the decision to Homeland Security to make the call.” That’s the reason lobbying has focused on the department, she said.

Indeed, the H-2B Workforce Coalition’s major initiative this year has been a letter to the secretaries of Homeland Security and Labor, dated Feb. 22, asking that they approve the full allotment of additional 69,320 visas authorized by Congress. “Seasonal workers help support many upstream and downstream jobs,” the letter said. “Every H2-B worker is estimated to create and sustain 4.64 American jobs.”

Ahl cited as an example the people working in administration, accounting and other positions needed to run the hotels, lawn maintenance and other businesses that use the visas. And he said the coalition will be asking Congress to enact a permanent increase in the number of visas.

But that effort will meet a lot of resistance. A posting by Preston Huennekens of the Center for Immigraton Studies said “H-2B guest workers depress the wages of low-skilled and low-educated Americans. These Americans are often those who need a job the most. Doubling the number of H-2B laborers is a far cry from President Trump's promise to protect American workers. Instead, this provision betrays them.”

Where It Hurts

Texas leads the way in employment of H-2B workers, with 15 percent of the total in 2018 and 2017. That amounts to about 18,000 jobs. Florida and Colorado occupy the next two slots, offering slots to about 6,000 workers.

Statistics from the Labor Department also show that in 2018 about half of H-2B visas went to workers in landscaping and groundskeeping. The next three categories were: Maids and housekeeping cleaners; amusement and recreation attendants; and forest and conservation workers. Meat, poultry and fish cutters and trimmers totaled were another large category. Laborers in construction and freight, cafeteria and restaurant workers and cooks also account for many hundreds of jobs.

Seventy-two percent of guest workers came from Mexico in 2016, according to the latest Homeland Security Department data. Next in line are Jamaica with 11 percent of workers, Guatemala with 4 percent, South Africa with 2 percent and Great Britain and Northern Ireland with 1 percent. A smattering come from Eastern Europe and elsewhere.

Media have detailed use of H-2B visas by low-wage companies across the country, and the role that labor specialists like Tod Ahl have played.

For example, a Reuters investigative team told the story in 2015 of a former circus fire-eater who became an important recruiter for carnivals. James Judkins, Reuters reported, was a “former circus owner who once performed as a fire-eater and juggler, [who] has emerged as the largest purveyor of Mexican workers for the $500 million-a-year carnival industry. He is among a growing number of brokers who have become experts in securing visas and helping U.S. companies find cheap foreign labor.”

In Maryland, the plight of crabbing companies on the Eastern Shore of the Chesapeake Bay has caught the attention of the media and local politicians. The state’s famous blue crabs can be sold directly to crab shacks where customers attack them with wooden mallets and picks. But it’s much more profitable to sell containers of fresh crab meat, plucked from the crustaceans by low-wage workers in remote villages on the bay.

In 2018, the crabbers failed to get the 400 to 500 employees they usually worked with, mostly from Mexico, in earlier years. Republican Governor Larry Hogan and others appealed to Homeland Security officials to add to the 33,000 positions available for the season. Another 15,000 were added, but the crabbing companies came up short in the ensuing lottery. As a result, some of the crabbers reported that their revenues had been cut in half.

Jay Newcomb, owner of Old Salty’s Restaurant in Fishing Creek, who is also a member of the Dorchester County Council, told the Baltimore Sun that it is difficult to recruit local workers.

“We have tried everything under the sun for years and years,” he said. “It's seasonal [work] and we’re a little fishing village down on an island.”

For 2019, the crabbing companies’ fortunes reversed, and they received virtually all the visas they requested. No one understands why the tide turned. “It could be that we were just extremely lucky,”  Bill Seiling, executive director of the Chesapeake Bay Seafood Industries Association, told the Sun. But the industry has no assurance it will be so lucky in the future.

Maine seasonal businesses are also struggling this spring, and the state’s two senators, Republican Susan Collins and Independent Angus King, led the charge to have more positions authorized by the Homeland Security Department. They put together a bipartisan group of 11 senators who signed a  March 1 letter asking for the increase.

Coastal communities rely on summer income, and the shortage of H-2B workers has already caused businesses to open later than usual and to cut back hours, according to a recent report in the Mount Desert Islander. Terry Reece, who runs restaurants in Bar Harbor and Northeast Harbor and also provides staff for the short summer season of The Harbor Club in Seal Harbor, where the Rockefeller family summers, reports that he has had trouble getting his usual complement of foreign students with J-1 visas, allowing them to come over for three months. Reece is among a handful of entrepreneurs who supply housing for his summer workers, meeting what he said in an email “is a Big problem on the island.”

Foresters from Maine to Oregon use the H-2B visa for low-wage occupations such as cutting brush and planting seedlings. Their spokesmen are sensitive to the charge that the foreign workers are taking jobs away from Americans. In a release about the program last year, the Maine Forest Products Association quoted the principal industry lobbyist on the issue: “Guest workers from Central America and Mexico are absolutely critical to the practice of sustainable forestry in this country,’” Deb Hawkinson, Forest Resources Association president, said. “Because the work is seasonal and tree-planting crews move throughout wide regions, U.S. citizens and legal permanent residents are just not interested in this work.”